and 136 New York State Reporter

marketable, and, if it failed, it could not now, having rejected the title, obtain a specific performance from its vendor, and such seems to be the law, based upon principle and authority (Steinhardt v. Baker, 163 N. Y. 411, 57 N. E. 629); but he contends that the situation is changed, owing to the assignment of the contract and the action taken by the assignee thereof. The assignment of the contract, of course, cannot enlarge the rights of the plaintiff as against its vendor. Since the plaintiff cannot, as against the vendor, owing to its refusal to take title, have a decree for specific performance, even though the title be good, it is difficult to discern what relief, if any, may be afforded the plaintiff in this action against the vendor. It could maintain an action against the vendor to cancel the contract and recover back the purchase price and the reasonable expenses of examining the title, if it owned the contract and alleged a breach (Bruner v. Meigs, 64 N. Y. 506, 515), which, however, it does not. However, if a good cause of action in equity is stated against either defendant, the dismissal of the complaint in favor of both cannot be sustained.

No question of improper joinder of parties defendant was presented by the motions upon which the complaint was dismissed, nor could such objection be taken, even by demurrer, as it does not concern one defendant, if a good cause of action is stated against him, that another defendant has been joined against whom no cause of action is set forth. Crosby v. Berger, 4 Edw. Ch. 210; New York & New Haven R. R. Co. v. Schuyler et al., 17 N. Y. 592; McIntosh v. Ensign, 28 N. Y. 169. It remains, therefore, to be seen whether a cause of action is shown against the defendant company, and, if so, whether the vendor is a necessary or proper party thereto. It is quite clear that the plaintiff does not allege whether the title was marketable or not, and it is claimed by the learned counsel for the respondents that the plaintiff does not even allege the essential facts upon which its marketability depends. Under the liberal rule for the construction of pleadings that obtains in this jurisdiction, and which is still more liberal when the question, instead of being raised by demurrer, is presented by motion to dismiss on the trial (Sanders v. Soutter, 126 N. Y. 195, 27 N. E. 263; Kain v. Larkin, 141 N. Y. 150, 36 N. E. 9), I am of opinion that the complaint was sufficient to admit proof upon the trial to show that the facts stated in the objections to the title were true. If this be doubtful, however, on the complaint standing alone, the objection is removed by the answer of the defendant company, which specifically avers that the facts stated in the objections were true and that the title was defective, and prays for an adjudication thereon canceling and annulling the contract, and that it was justified in rejecting the title, and for the relief to which it would be entitled under the contract upon that theory. Jacquelin v. Morning Journal Ass'n, 39 App. Div. 515, 57 N. Y. Supp. 299; Miller v. White, 4 Hun, 62; Cohn et al. v. Husson, 113 N. Y. 662, 21 N. E. 703.

It is further objected that the plaintiff must decide for itself, before suing, whether the title was good or bad, and that it cannot come into a court of equity, in effect, for advice as to whether the title was marketable. The learned counsel for the appellant does not contend that

his client is entitled to the advice or direction of the court, as is a trustee in certain cases, and he disclaims that the action was brought or presented on that theory that the advice of the court is sought upon any ground. His claim is that facts are alleged in the complaint showing that the plaintiff is entitled to some relief, but that the form and nature of the relief depends upon the decision of the court as to whether the title was marketable and properly rejected, or unmarketable and improperly rejected. If the title was marketable, he contends that, as against the defendant company, his client is entitled to specific performance of the contract as between them at least, even though, on account of the refusal of both to take the title, specific performance may not be decreed as against the vendor, and that, if the title be not marketable, his client is entitled to have the assignment canceled and the contract reassigned to it by the defendant company, so that it may be in a position to perform, if performance be demanded by the vendor, and to recover the purchase money paid and the expenses of examining the title in any event. In either event, therefore, he claims that plaintiff is entitled to equitable relief against the defendant company; but, being in doubt as to the law of the marketability of the title, which will control the form and nature of the relief, he presents the case in a double aspect, without alleging which is right, and prays for relief in the alternative, but founded on the same facts, and therefore not inconsistent, depending only on whether it is held that the title was marketable or unmarketable.

This form of pleading in equity prevailed long before the Code, and is still sanctioned. McCosker v. Brady, 1 Barb. Ch. 329, affirmed 1 N. Y. 214; Belmont v. O'Brien, 12 N. Y. 400; Lloyd v. Brewster, 4 Paige, 537; Colton v. Ross, 2 Paige, 396; Evans v. Burton, 5 N. Y. St. Rep. 216; Schiffer v. Lauterbach, 7 App. Div. 231, 40 N. Y. Supp. 40; Matter of Patterson, 79 Hun, 377, 29 N. Y. Supp. 451; Redmond v. Dana, 3 Bosw. 615; Daniell's Chancery Pr. (6th Am. Ed.) vol. 1, pp. 384, 385; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. 771, 28 L. Ed. 1141; Black v. Henry G. Allen Company (C. C.) 42 Fed. 618, 9 L. R. A. 433; Halsey v. Goddard (C. C.) 86 Fed. 25. But the alternative relief must be demanded against the same defendant or defendants. Clarke v. Lord Rivers, L. R. 5 Eq. Cas. 91. In many cases pleadings in equity, presenting the case in a double aspect and demanding alternative relief, have been sustained where, if the plaintiff failed to establish certain facts alleged which would entitle him to equitable relief, he claimed in the alternative other equitable relief upon other facts alleged. Conn. Mut. Life Ins. Co. v. Cornwell, 72 Hun, 199, 25 N. Y. Supp. 348; Redmond v. Dana, supra; Rilgour v. New Orleans Gaslight Co., 2 Woods (U. S.) 144, Fed. Cas. No. 7,764; Bagot v. Easton, 6 Ch. Div. 1; Davis v. Otty, 2 De G., J. S. & S. 237; Caldwell v. King, 76 Ala. 149; Fisher v. Moog (C. C.) 39 Fed. 665; Rockwell v. Morgan, 13 N. J. Eq. 384. This court has recently hell that a complaint is good which demands alternative relief, even on inconsistent facts, on plaintiff's failure. or inability to sustain one theory, in which event he demands relief upon the other theory. Hasberg v. Moses, 81 App. Div. 199, 80 N. Y. Supp. 867, and cases cited.

102 N.Y.S.-9

and 136 New York State Reporter

We agree with the contention of the learned counsel for the respondents that the plaintiff does not show ignorance of material facts specially or peculiarly known to the defendants, which would, under the former equity practice, entitle it to a discovery of the facts (Lloyd v. Brewster, supra; Wilkinson v. Dobbie, 12 Blatchf. [U. S.] 298, Fed. Cas. No. 17,670), even if that form of complaint would in any case be now permissible under our Code of Civil Procedure, which is doubtful, since it is required that the complaint shall state the material facts, and a remedy by an examination of the defendant to enable the plaintiff to frame a complaint has been provided as a substitute for the old bill of discovery.

The plaintiff, however, as already stated, claims to have alleged all of the material facts upon which the marketability of the title depends. If, however, the title was marketable, and the defendant company was at fault in rejecting it, it may be doubtful whether the plaintiff has a cause of action against the defendant company in equity for specific performance, since he would only be entitled to a judgment for damages for breach of contract. Upon this theory of the case, I doubt whether the plaintiff's vendor could be brought into the action, and compelled to litigate in this action her claim for damages, or her right, if she should see fit to assert the right, to a specific performance of the contract as against the plaintiff. On the other hand, if the title was not marketable, the plaintiff would be entitled as against the defendant company to a cancellation and reassignment of the contract. The contract contemplated a formal cancellation and reassignment in the event that the assignee should, without its own fault, be unable to obtain title. This, therefore, was the agreement of the parties, and it may be essential to the plaintiff's right to recover of the yendor the down payment and expenses of examining the title; for those rights have passed to the defendant company by the assignment, and, moreover, plaintiff is entitled to be in a position to perform, should its vendor assert the marketability of the title and demand performance. It may well be that a court of equity would not take jurisdiction merely to cancel and annul the assignment (Globe Ins. Co. v. Reals, 79 N. Y. 202; Town of Springport v. Teutonia Savings Bank, 75 N. Y. 397); but here special facts and circumstances exist which render it proper that the defendant company should be compelled to execute and deliver a reassignment of the contract in accordance with the express agreement of the parties, and this it has jurisdiction to do (McHenry v. Hazard, 45 N. Y. 580; Hamilton v. Cummings, 1 Johns. Ch. 517; Met. El. R. Co. v. Manhattan El. R. Co., 11 Daly, 373).

The defendant company, in its answer, alleges that it has demanded the amount for which, upon this theory of the case, the plaintiff is liable to it, and that the plaintiff has refused to pay the same. These allegations are denied in the reply. That, however, if true, would only indicate that perhaps the plaintiff might have obtained a reassignment without going into court, but does not bar its right; for, under the contract, the plaintiff was under no obligation to make the payment until the defendant company reassigned the contract. The failure of the plaintiff to demand a reassignment of the contract before

bringing the action may be a ground for refraining from allowing it costs; but it is not a bar to equitable relief. I am of opinion, therefore, that upon the theory of the complaint which is fairly to be inferred from the allegations, and which is supported and sustained by the answer of the defendant company, the suit can be maintained in equity against the defendant company for a cancellation and reassignment of the contract. Inasmuch as the vendor in her answer makes no demand for specific performance, and her only prayer for relief was for a dismissal of the complaint, I am of opinion that the complaint was properly dismissed as against her, for the reason that she was not a necessary party to the action as between the plaintiff and the defendant company upon the only theory upon which I think the complaint can be sustained, and she cannot be compelled in this action to litigate her right to damages against the plaintiff under her contract with it.

It follows, therefore, that the judgment should be affirmed, with costs, as to the respondent Cunningham, and reversed, and a new trial ordered, with costs to abide the event, as to the defendant company.

PATTERSON, J., concurs.

JOHNSON v. PETTIT et al.

(Supreme Court, Special Term, New York County. November, 1906.)

1. MUNICIPAL CORPORATIONS-CHANGE in Grade of STREET-DAMAGES-AWARD BY BOARD-REVIEW IN EQUITY.

Where an action is brought by plaintiff to have it declared that he is the owner of certain property damaged by the elevation of the street grade, and entitled to the award of damages made by the board of assessors, although the action is one in equity to determine the question of title, yet the effect of it is to review the action of the board in awarding the amount to the owner of the property at the time the damages occurred. 2. SAME.

An award of the board of assessors of the city of New York, under Laws 1905, p. 1529, c. 626, whereby the board is authorized in its discretion to ascertain and award damages to the owners of certain real property by reason of a change in the grade of a street, is not reviewable by an action in equity, except in cases where such awards have been obtained by fraud.

Action by William Johnson against Le Grande Pettit and another to have it declared that plaintiff is the owner of certain property and entitled to an award of damages, and that the city be required to pay to the plaintiff the amount so awarded. Complaint dismissed.

John C. Shaw, for plaintiff.

J. A. Flannery, for defendant Pettit.

John J. Delany, for defendant city of New York.

NEWBURGER, J. Chapter 626, p. 1529, of the Laws of 1905, authorized the board of assessors of the city of New York, in its discretion, to fix, determine, and allow the amount of damages sustained by

and 136 New York State Reporter

owners of real property fronting upon Riverside avenue, between Ninety-Fifth and Ninety-Seventh streets, and upon West Ninety-Sixth street, between West End avenue and Riverside avenue, by reason of the elevation of the grade of Riverside avenue. The contract for the construction of the viaduct over Ninety-Sixth street had been let, and work began on the 11th day of September, 1900. The work was completed in August, 1902. On the 13th day of June, 1905, the defendant Pettit filed his claim for damages, and on the 21st day of February, 1906, the plaintiff filed his claim for damages, both claiming to be the owners of the same property on West Ninety-Sixth street. The title to the property appears to have been in the plaintiff up to May 1, 1901, and from that date until July 31, 1902, the title to the property was held by the defendant. After the filing of the claims before the assessor's testimony was taken, and on the 30th day of March, 1906, the board of assessors filed with the comptroller of the city of New York a certificate, which recited that hearings were had before said board, and all proofs and evidence of ownership of the property had been offerred, and that said assessors, upon the evidence presented, did award to the defendant herein damages accrued upon the premises in the sum of $25,000, with interest. This action is now brought by the plaintiff to have it declared that he is the owner and entitled to the award, and that the city be required to pay to the plaintiff the amount so awarded. While this action is one in equity to determine the question of title, the effect of it is to review the action of the board of assessors in awarding the amount to the owner of the property at the time the damage occurred. The authorities relied upon by the plaintiff were either actions in which the owners were unknown or cases in which there was a question as to priority of title by reason of mortgages or assignments. In a case based upon a similar statute it was held that the power of the board of assessors was permissive rather than mandatory, and it was left to the discretion of the board to determine whether the owners of the property had sustained any damage, and, if so, the extent of that damage, and that such award was final. See Stephens v. Phillips, 88 App. Div. 560, 85 N. Y. Supp. 200. I can find nowhere any authority that would authorize this court in an action in equity to review the action of the board of assessors in making the award, except in cases where such awards have been obtained by fraud; and, as there is no allegation of fraud in this case, the complaint must be dismissed upon the merits.

(116 App. Div. 711)

CULLINAN, State Excise Com'r, v. HORAN et al. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. TRIAL-OBJECTION TO QUESTION-DELAY IN INTERPOSITION.

Objection to a question interposed after it was answered, there being nothing to indicate that it could not have been made before the answer, is too late.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 183-190.]